Po­lice search of stu­dents is un­law­ful

Jamaica Gleaner - - NEWS - Yanique Tay­lor

AS I stood in line at the su­per­mar­ket the other night, be­ing held hostage by the cashier who found it more press­ing to fin­ish her con­ver­sa­tion than cash my goods, I was drawn to Tele­vi­sion Ja­maica’s Prime Time News where the po­lice were con­duct­ing searches of school­boys in the Span­ish Town area. The com­mu­ni­ca­tions of­fi­cer for the Ja­maica Con­stab­u­lary Force (JCF) ex­plained that crim­i­nals, in par­tic­u­lar ex­tor­tion­ists, dressed as school­boys in uni­form, were us­ing this dis­guise to carry out their crim­i­nal ac­tiv­i­ties and avoid de­tec­tion. The JCF, there­fore, planned and ini­ti­ated a drive to start search­ing males dressed in school uni­forms.

Whilst I un­der­stand that the JCF un­doubt­edly faces a for­mi­da­ble chal­lenge in fight­ing crime and have had to de­vise in­no­va­tive means of ad­dress­ing this vi­cious mon­ster over the years, the po­lice must, how­ever, re­main con­scious of the fact that crime-fight­ing ob­jec­tives should not be at the ex­pense of con­sti­tu­tion­ally guar­an­teed rights and free­doms of lawabid­ing cit­i­zens. The pro­posed and ex­e­cuted ac­tions of the po­lice of­fi­cers ap­pear to be un­law­ful and di­rectly in­fringe upon the rights and as­so­ci­ated free­doms of these stu­dents.

UN­LAW­FUL SEARCH

Sec­tion 13 (3)(j) (i) of the Char­ter of Fun­da­men­tal Rights

and Free­doms guar­an­tees a right to pro­tec­tion from the search of per­son and prop­erty. It si­mul­ta­ne­ously recog­nises this

right and places an obli­ga­tion on the State to re­spect the right by stat­ing that no or­gan of the State should take ac­tions which

in­fringe on or abridge those rights. It is pru­dent to high­light, how­ever, that the right is not ab­so­lute, as it may be ab­ro­gated

where the rights of an­other per­son is be­ing in­fringed upon or where it is pro­vided for via statute. This ab­ro­ga­tion must, how­ever, be demon­stra­bly jus­ti­fi­able in a free and demo­cratic so­ci­ety. In the fairly re­cent de­ci­sion of Gary He­mans v The At­tor­ney Gen­eral in the Ja­maican Supreme Court, Jus­tice Batts re­it­er­ated that “per­sons un­der the Queen’s peace are en­ti­tled to free­dom from search of their per­son or prop­erty un­less such a search is legally jus­ti­fied”.

In the United States (US), a ‘Stop and Frisk’ pol­icy (the anal­o­gous prac­tice to the JCF’s ‘Stop and Search’ modus operandi) in­sti­tuted by the New York Po­lice De­part­ment in 1999, was deemed un­con­sti­tu­tional as it vi­o­lated the Fourth Amend­ment right to be free from un­rea­son­able searches and seizures. This was based on a rul­ing of the US District Court in 2013 and was unan­i­mously up­held by a three-judge panel in the Sec­ond Cir­cuit in 2014.

In the past, the po­lice were em­pow­ered un­der the Va­grancy Act, 1842, to stop and search in­di­vid­u­als in a pub­lic place once they sus­pected that they might com­mit a crim­i­nal of­fence. This act has, how­ever, since been re­pealed and there­fore the po­lice no longer has such pow­ers.

WORK­ING ON IN­TEL­LI­GENCE

The JCF, in this cur­rent sit­u­a­tion, is pur­port­ing to search per­sons in school uni­forms, hav­ing re­ceived in­for­ma­tion that ex­tor­tion­ists as­so­ci­ated with the Clansman gang were dis­guis­ing them­selves as such. In or­der to legally ex­e­cute these searches, there must be a leg­isla­tive pre­scrip­tion which au­tho­rises the mem­bers of the JCF to do so. Fail­ing such pre­scrip­tion, the search is un­law­ful.

Ex­tor­tion, the of­fence with which the po­lice are con­cerned in the in­stant case, is made pun­ish­able un­der the Lar­ceny Act. A pe­rusal of Sec­tion 63 (1) of this statute reveals that a search of a per­son may be con­ducted where it is rea­son­ably sus­pected that such per­son has in his pos­ses­sion/cus­tody any prop­erty pur­suant to an of­fence un­der the Lar­ceny Act, pro­vided that a search war­rant has been ob­tained in this re­gard. The ac­tions of the po­lice of­fi­cers in ar­bi­trar­ily search­ing these stu­dents in hopes of iden­ti­fy­ing ex­tor­tion­ists or per­son com­mit­ting other of­fences is, there­fore, not based on any le­gal

au­thor­ity and hence re­quires con­sent of the per­son be­ing searched.

The law recog­nises the duty of the po­lice to con­duct war­rant­less searches once a per­son has been ar­rested for an of­fence. In one de­ci­sion in the United King­dom House of Lords, the court held that it was a well-es­tab­lished prin­ci­ple at com­mon law that where a per­son has been ar­rested, the of­fi­cer ef­fect­ing said ar­rest could search that per­son and seize ar­ti­cles found on him. No­tably, un­like Ja­maica, the UK’s po­si­tion is but­tressed by the statu­tory au­thor­ity (the Po­lice and Crim­i­nal Ev­i­dence Act).

The po­lice in Ja­maica can there­fore ar­rest a per­son and sub­se­quently search that per­son. How­ever, where the po­lice is de­void of a war­rant to ef­fect the ar­rest, the ar­rest­ing of­fi­cer must have formed a rea­son­able sus­pi­cion that the ar­restee has or is about to com­mit an of­fence. (The dis­cus­sion as to rea­son­able sus­pi­cion is best left for an­other ar­ti­cle).

WAR­RANT­LESS SEARCH

There­fore, un­less a per­son ex­pressly con­sents to a search, a statute per­mits war­rant­less search, a search fol­lows a law­ful ar­rest, the au­thor­ity for the search must be evinced in a search war­rant out­lin­ing the ba­sis for the search and the act which per­mits such a search. Fail­ing ei­ther, the search, as pro­posed by the po­lice of­fi­cers, is un­law­ful. Un­til there is pas­sage of a law fa­cil­i­tat­ing searches in the con­text we cur­rently see mem­bers of the JCF ex­e­cut­ing them, we must en­treat these mem­bers to re­frain from en­gag­ing in this un­law­ful en­ter­prise lest they be made sub­ject to dis­ci­plinary ac­tion and/or le­gal suit.

It is then abun­dantly clear that the searches be­ing ex­e­cuted by JCF mem­bers, as doc­u­mented on Tele­vi­sion Ja­maica’s Prime Time News on Monday, Novem­ber 7, 2016, need to be con­ducted in the proper le­gal con­text. There can never be a trade-off be­tween the con­sti­tu­tion­ally guar­an­teed rights of law-abid­ing cit­i­zens and the JCF’s ob­jec­tives of pre­vent­ing and de­tect­ing crime. The mem­bers of this noble or­gan­i­sa­tion must never for­get that they are also sworn ‘to serve, pro­tect, and re­as­sure with courtesy, in­tegrity and proper re­spect for the rights of all’.

Yanique Tay­lor is the le­gal of­fi­cer at the In­de­pen­dent Com­mis­sion of In­ves­ti­ga­tions (INDECOM).

The pro­posed and ex­e­cuted ac­tions of the po­lice of­fi­cers ap­pear to be un­law­ful and di­rectly in­fringe upon the rights and as­so­ci­ated free­doms of the stu­dents.

The JCF is pur­port­ing to search per­sons in school uni­forms, hav­ing re­ceived in­for­ma­tion that ex­tor­tion­ists as­so­ci­ated with the Clansman gang were dis­guis­ing them­selves as such. In or­der to legally ex­e­cute these searches, there must be a leg­isla­tive pre­scrip­tion which au­tho­rises the mem­bers of the JCF to do so. Fail­ing such pre­scrip­tion, the search is un­law­ful.

GUEST COLUM­NIST

Newspapers in English

Newspapers from Jamaica

© PressReader. All rights reserved.